Opinion
2002-06946
Submitted May 21, 2003.
June 16, 2003.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Jackson, J.), dated June 5, 2002, which granted the defendants' motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).
Jaroslawicz Jaros, New York, N.Y. (David Jaroslwicz, David Tolchin, and Robert J. Tolchin of counsel), for appellant.
Jaffe Nohavicka, New York, N.Y. (Stacy R. Seldin of counsel), for respondents.
Before: FRED T. SANTUCCI, J.P., NANCY E. SMITH, DANIEL F. LUCIANO, ROBERT W. SCHMIDT, WILLIAM F. MASTRO, JJ.
DECISION ORDER
ORDERED that the order is affirmed, with costs.
The Supreme Court properly granted the defendants' motion for summary judgment dismissing the complaint. The defendants established a prima facie case that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Gaddy v. Eyler, 79 N.Y.2d 955). In opposition, the plaintiff failed to submit any medical proof that was contemporaneous with the accident showing any initial range of motion restrictions in his spine (see Pajda v. Pedone, 303 A.D.2d 729 [2d Dept, Mar. 31, 2003]; Lanza v. Carlick, 279 A.D.2d 613, 614; Passarelle v. Burger, 278 A.D.2d 294). Furthermore, the plaintiff's expert failed to indicate his awareness that the plaintiff was suffering from degenerative spondyloarthropathy, and therefore, his finding that the plaintiff's current restrictions of motion in his spine were causally related to the subject accident was mere speculation (see Ginty v. MacNamara, 300 A.D.2d 624; Narducci v. McRae, 298 A.D.2d 443; Kallicharan v. Sooknanan, 282 A.D.2d 573, 574). Since the plaintiff did not allege in his complaint or bill of particulars any injuries relating to his right shoulder and did not move for leave to amend the bill of particulars, the evidence pertaining to his right shoulder is not considered (see Seymour v. Roe, 301 A.D.2d 991, 992 n 2).
SANTUCCI, J.P., SMITH, LUCIANO, SCHMIDT and MASTRO, JJ., concur.